Help! Lawsuit against USCIS - pending motion of dismissal

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RFE Pending

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Hi, I filed a lawsuit against USCIS for failing to decide on my case after 120 days of my interview. I passed the interviewed on March 21, 2006.

I filed a civil lawsuit on March 12, 2007. I received a hearing notice from US attorney's office yesterday. They are going to ask the District judge to dismiss my case on June 22.

Is there anything I can do or I should do before the hearing date?

Anyone in similar situation or have experienced the same situation, please share your experience!
 
I don't understand - is the US attorney's office similar to a defendent in this situation? I just find it odd that they would send you a notice about what they want to do. It's obvious that they would want to dismiss it even if they were 100% wrong.

Did you file the right paperwork? You should definitely be using an attorney to represent you in matters as critical as this.
 
I beleive it's routine for them to file a motion to dismiss. If they can get it dismissed, they would rather get it dismissed. They are required to provide you a copy of all motions they make (they have to serve you with a copy).

Read the motion to dismiss. See on what grounds the motion is made. Usually, based on experiences on this board, it seems that motions to dismiss on the part of the US Attorneys fail. The judge would then force them to make a decision within a certain amount of time.

Make sure you know what the grounds for dismissal are and you have a response for it during your hearing.
 
Ground for dismissal

Here is the exact quote from the Motion to dismissal they copied me "Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 8 U.S.C. $$ 1447(b), defendants hereby move this Court to dismiss plaintiff’s complaint in the above-mentioned matter for a lack of subject matter jurisdiction. In the laternative, defendants respectfully move this Court to remand plaintiff’s action to the Department of Homeland Security’s Bureau of Citizenship & Immigration Services for adjudication of his naturalization application within a reasonable time after BCIS’ receipt of the FBI’s “full criminal background check” of plaintiff."

1. Could someone please explain to me what the above paragraph means?

2. Should I prepare a response in writing?

3. Can someone share their response with me if he/she has encountered the same issue?

Many thanks!
 
haha legal mumbo jumbo

Here is my interpretation:
USCIS is claiming the court should dismiss your complaint because your problem is not due to their fault. USCIS further asks the court to state that your demand can only be that USCIS act within a reasonable time only after the FBI security check is complete.
 
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You might also want to point out that the Bureau of Citizenship and Immigration Services no longer exists, it is the "United States Citizenship and Immigration Services" now (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=80f5bbf6b41f1c2043f81916a7cdc0b0).

You'd think these morons would know their own name!!

Also, they clearly point out on their interview results form that you can sue after 120 days - can you tell that I'm a big fan of holding someone to their word!

Yes, you should prepare a response in writing. If it were me, I'd point out:

  1. The BCIS doesn't exist so it would be impossible to remand the case to the BCIS (include a printout of that web page)
  2. You are acting on a good faith understanding of what they promised you on the interview results form (include a copy of the form)
  3. They should have known that the FBI might take longer than 120 days when they interviewed you, and as a result, should not have put that information on the form, at the very least they should have mentioned it.
  4. Read up on the applicable statute (both the one mentioned on the form and 1447(b)), and put down your understanding of whatever it says, pointing out that it seems clear to you that you are within your rights and that their arguments are wrong.

Caveat: I can barely spell "lawyer" and my knowledge of the law is mostly derived from occasionally watching "Law and Order"
 
Flydog has some good points and you can certainly attack the form but you definitely need to attack the content of their argument.
I believe the satute refers to 120 days after the "examination". CIS' position is the examination is the whole period between the filing and the end of the process including the background checks and that's most likely not what the legislator intended. So this case boils down to you saying the "examination" is the interview and CIS saying it's not. So find some cases where US districts have ruled for your position and use them as precedents. The judge will be more inclined to rule in your favor because you don't leave room for any new interpretation. You can also point out that if the you accept CIS' argument, there is nothing that defines the end of the examination period and therefore your cases could technically go on forever and that subverts the spirit of the 1447 rule if not the letter of it.
When in doubt, get a lawyer if you can.

Note: The above is not legal advice. I'm not an attorney.
 
RFE:

Read the following cases from District Courts and the 9th circuit court of appeals. It'll take you a while. If something doesn't make sense, re-read it. I'd read them all myself, but don't have the time right now:

United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)

GERO MEYERSIEK, Petitioner, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICE, et al., Respondents. CA 05-398 ML

The following deal with what "examination" includes (and it's in your favor):

Al-Kudsi v. Gonzales, 2006 U.S. Dist. LEXIS 16761, No. CV 05-1584, 2006 WL 752556, at *2 (D. Or. Mar. 22, 2006)

Essa v. U.S. Citizenship and Immigration Services, 2005 U.S. Dist. LEXIS 38803, No. CIV051449, 2005 WL 3440827, at *2 (D. Minn. Dec. 14, 2005)

El-Daour v. Chertoff, 417 F.Supp. 2d 679, 681 (W.D. Pa. 2005)

Not all the cases will mirror your case. However, you will find information in there, or parts, that resemble your case. You have to take these parts and make an argument based on these cases.

If you google the parties, you should be able to find the cases or the opinions. If you have trouble with that, PM me and I can send you the text.

Good luck and welcome to the US judicial system ;)
 
I have one more regarding subject matter jurisdiction (essentially the respondent USCIS claims that the district court does not have jurisdiction over the case)

SUKHWINDER DEOL, Plaintiff, v. MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, et al., Defendants. CV F 06-1606 AWI DLB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Oh and as others have noted, this is not legal advice. I'm not a lawyer. I almost wish (though not quite) that I could sue them for something like this because I find this stuff fascinating. Although the downside would be that I would spend all day preparing my response and get fired from work, etc.
 
I reviewed some of the court cases and somewhat surprised to find that there are many cases of denial. People here have assumed it was pretty much a slam dunk process. Of course, there are many more cases of well-reasoned successful petitions but it definitely is not something to take it for granted.

I concur with workingman06's assesement. CIS claims the examination process includes FBI security checks, and 120 days period does not start until the check is complete. Thus they reasoned the court has no jurisdiction over the matter. The govenment has the precedent case of Danilov v. Aguirre from a federal court in Virginia to support their case. 'RFE pending' should review previous cases that '1Cali400' listed to support his argument.
 
Having just skimmed through it, a lot of the granted motions to dismiss seem to be because of denied applications or applications that were denied after the 1447(b) suit was filed.

But, still, definitely not a slam dunk. It seems to be something that you have to make an effective argument for.
 
PM me the text?

iCalN400,

Do you mind send me the text to my email? I can't get the PM function to work. Thanks for your information!
 
RFE:

Unfortunately, I found the cases using a subscription service through an organization I work with. The license agreement does not allow me to distribute the cases that I download using the service.

I'm really sorry, but it would be unethical for me to send you these cases. I would try googling both the parties and the docket numbers and you should be able to find most of them.

If you have trouble finding any of them, I'd encourage you to go to a law library at a university close to you and the research librarian should be able to help you find the cases if you give them the docket number and the parties.

I'll try to find the cases on the internet and post them here when I get some time.

I apologize for the inconvenience. Good luck with your hearing!
 
OK one last post.

I found some cases for free. I've attached them here.

Also this website is a great resource:

http://www.ailf.org/lac/natz_delay0806.shtml

It lists appellate and district court cases for different states. Generally, when you're arguing a case, appelate court opinions and opinions from the same district court are the most convincing. But other district court opinions, while not binding, can be convincing.

If you can't find the text of a case for free, try PACER:

http://pacer.psc.uscourts.gov/

They charge you for the opinions ($.08/page), but a opinion shouldn't cost you more than $1 or $2. You have to know the district court that issued the opinion to use PACER. That's easy to find. For example, on the AILF website, if you see (N.D. Ohio), that means the opinion was issued by the United States District Court for the Northern District of Ohio. If you see (D. Ore), that means it's the United States District Court for Oregon (only one for the state).

If you see (9th cir.) or any "cir." it indicates the opinion was issued by the 9th (or other) circuit court of appeals.
 
I may only be an engineer and not a lawyer, but, when I read this on my N-652 (Naturalization Interview Results), I was pretty sure that it meant that if they couldn't decide if they were going to admit me within 120 days of when the "examined" me, I could go in front of a judge and ask what was going on:

N-652-Naturalization Interview Results form said:
Please be advised that under section 336 of the Immigration and Nationality Act, you have the right to request a hearing before an immigration officer if your application is denied, or before the U.S. district court if the USCIS has not made a determination on your application within 120 days of the date of your examination.
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They handed that to me as I left the "examination" room.

The relevent part of Section 336 (8 U.S.C. 1447) of the INA (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=9d296ed8d97f728392be9cc37bc47260) is

INA Sec. 336. (8 U.S.C. 1447) said:
(b) If there is a failure to make a determination under section 335 before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
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That references Section 335, where the examination is described:

INA Sec. 335. (8 U.S.C. 1446) said:
(b) The Attorney General shall designate employees of the Service to conduct examinations upon applications for naturalization. For such purposes any such employee so designated is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any applicant for naturalization, to administer oaths, including the oath of the applicant for naturalization, and to require by subpoena the attendance and testimony of witnesses, including applicant, before such employee so designated and the production of relevant books, papers, and documents, and to that end may invoke the aid of any district court of the United States; and any such court may, in the event of neglect or refusal to respond to a subpoena issued by any such employee so designated or refusal to testify before such employee so designated issue an order requiring such person to appear before such employee so designated, produce relevant books, papers, and documents if demanded, and testify; and any failure to obey such order of the court may be punished by the court as a contempt thereof. The record of the examination authorized by this subsection shall be admissible as evidence in any hearing conducted by an immigration officer under section 336(a) . Any such employee shall, at the examination, inform the applicant of the remedies available to the applicant under section 336 .
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That sounds an *awful* lot like the interview - they even give you notice of the remedies available under section 336 at the end. If the "examination" is not yet complete, then the USCIS should be requesting the court to order the "production of relevant books, papers, and documents" from the so that the examination can be complete. If the FBI fails to produce these "relevant books, papers, and documents", then they'd be in contempt.

If someone other than the government tried this kind of bait and switch (and produced phoney names when petitioning the court), they'd certainly loose their case.
 
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